Commission on Gender Equality
Submission to the south african parliamentary national assembly
Health portfolio committee
THE NATIONAL HEALTH BILL [B32-2003]
19 August 2003
The Commission on Gender Equality (CGE) is an independent statutory body, established in terms of Section 187, chapter 9 of the Constitution of South Africa, Act 108 of 1996.
Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.
Section 7(2) of the Constitution compels the state to fulfil the rights stipulated in the Bill of Rights. Sections 9, 10; 11, 12, 14 and 27 of the Constitution permits the State to the enact legislation promoting, equality, human dignity, life, freedom and security of the person, privacy, & access to health care in South Africa. The law of general application limits all these rights, to the extent that they are reasonable & justifiable in an open democratic society based on human dignity. It therefore raises the following questions:
On the 31 July 2003, the CGE hosted a consultative meeting on the National Health Bill, and the Older Persons Draft Bill and Policy, for interested individuals and organisations. The purpose and objective of this dialogue was twofold:
At this dialogue, we were not attempting to get consensus on the issues we hope to raise in our submission. However, we wanted to ensure that the National Health Bill is consistent with key Constitutional rights and principles.
OLDER PERSONS' REALITY
The CGE acknowledges that there is a need for legislation that will assist government in fulfilling their Constitutional imperatives. The CGE recognises that there is a gap with regard to the promotion and protection of Older Persons rights, and that they constitute a very valuable sector of South African society. This was also apparent during the Taylor report hearings where there was a lack of submissions around older persons.
Older persons are one of the most vulnerable groupings in South Africa, and are consistently passed over with regards to 'delivery' of social resources. 61% of all aged persons are females. These women are often widows, who have the responsibility for caring for their grandchildren, without any support. With the progression of the HIV/Aids pandemic, these women are now also forced to care for their adult children.
Press reports have continuously highlighted how vulnerable older persons are to abuse, often because their rights are not adequately protected under existing laws. Cases that demonstrate older persons' vulnerability include a Cape Argus article on an elderly person not receiving follow-up care after suffering a stroke; a report detailing the abuse elderly patients suffer at a Khayelitsha community health centre.
Issues arising from dialogue - Virginia Storm, a representative of the Aged Care Network, reported the following with regard to the reality of Older Persons.
"Older persons view the escalation of crime, which they associate with the high unemployment rate, as a major causal factor of their vulnerability in society. They also indicate that their inability to defend themselves, because of their physical frailty, exposes them to many forms of abuse. Furthermore they feel that various environmental factors, including inadequate healthcare and nutrition, contribute significantly to their vulnerability as they increase their susceptibility to disease and ill health.
Although older persons are entitled to receive free medical attention at primary healthcare points, these facilities are often under-equipped; under-resourced with poor services; and offer no specialized geriatric care.
In addition, Older persons mentioned several problems they experience in access to healthcare services, which include:
The CGE commends the Health Portfolio Committee for the consultative process that it has adopted in the finalization of this Bill. It is the hope of the CGE, that its submissions in respect of this critical piece of legislation will inform and enhance the consequent Act.
FOCUS OF SUBMISSION:
This submission will first provide a framework within which national health legislation should operate so as to ensure an engendered health legislative framework. In so doing, it will refer to the relevant constitutional provisions, International Law and South African Case-Law. This submission then makes specific submissions with regard to certain provisions in the Bill or the absence thereof.
It should however be stated at the outset that this submission is largely informed by the reality of women's health needs in South Africa and as such is limited to a women's health perspective. This particular focus is consistent with the constitutional imperatives of the CGE. The submission generally focuses on broad themes as opposed to a section-by-section analysis of the Bill. In instances where considered appropriate, recommendations are made in respect of specific sections of the Bill.
In formulating this submission, the CGE has had regard to the provisions of the White Paper on Health, previous versions of the National Health Bill, issue-specific health legislation and certain provincial health legislation.
CONSTITUTIONAL FRAMEWORK THAT SHOULD UNDERPIN NATIONAL HEALTH FRAMEWORK LEGISLATION
In accordance with its recognition of fundamental human rights, the South African Constitution has in terms of Section 27(1)(a) entrenched a right of access to health care services, including reproductive health care services. Section 27(2) of the Constitution obliges the State 'to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation' of the right, amongst others, of everyone 'to have access to health care services, including reproductive health care.' Section 27(3) of the Constitution provides that no one 'may be refused emergency medical treatment.' Section 28(1)(c) of the Constitution entitles every child to a right to basic health care services.
Much of the phraseology in respect of housing rights in the Constitution (which bears very close similarity to health rights) was the subject of the Constitutional Court decision in Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (hereinafter referred to as Grootboom). In interpreting the term 'reasonable measures', the court in Grootboom accepted that there are a wide range of measures that can be adopted by the State to meet the requirement of reasonableness. In particular, it pointed out that in considering a requirement of reasonableness, a court "will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent." According to the court in Grootboom, the central question is whether the measures that have been adopted are in fact reasonable.
However, it did make the following observation in respect of the interpretation of 'reasonable':
'It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right... If the measures, though statistically successful, FAIL TO RESPOND TO THE NEEDS OF THOSE MOST DESPERATE, they may not pass the test.'
In addition, the court recognized the relevance of the right to equality to socio-economic rights such as health care rights. In Grootboom at para 23, it stated as follows:
'There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied to
SECTION 9: THE RIGHT TO EQUALITY
In interpreting S9, the Constitutional Court has endorsed a substantive conception of equality.
'We need ... to develop a concept of unfair discrimination which recognizes that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.'
In another Constitutional case, Justice Albie Sachs noted:
'Equality should not be confused with uniformity; in fact uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference.'
Based on the constitutional court's understanding of equality, it is clear that the right to equality imposes the following obligations on the State:
These State obligations are made explicit in The Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000, which was adopted to give effect to the objectives of section 9 of the Constitution. In line with the substantive conception of equality, the duty to promote equality might necessitate, different measures for different groups based on their specific needs, position in society etc. These measures do not however, arise in a vacuum; they must be assessed and analyzed in light of different sectors and areas.
In analysing the link between equality rights and health rights, the submission also refers to key international law provisions.
INTERNATIONAL STANDARDS IN RESPECT OF HEALTH
SECTION 39 OF THE CONSTITUTION
S39 makes the consideration of international law mandatory in interpreting the rights in the Bill of Rights, including the right of access to health care services.
The relevance of international law was also acknowledged by Chaskalson P in S v Makwanyane and Another 1995 (3) SA 391 (CC), in the context of section 35(1) of the Interim Constitution, where he observed that both binding and non binding international law may be used as tools of interpretation. This was reiterated by the Constitutional Court in Grootboom. However, the court noted that the weight to be attached to any particular principle or rule of international law would vary.
In addition to the guidance provided by the Constitutional Court in respect of the interpretation of the right of access to health care services, at an international level, the International Covenant on Economic, Social and Cultural Rights (ICESCR) makes the most comprehensive reference to health rights.
Although South Africa has yet to ratify the ICESCR, its provisions do have some relevance to the nature of the measures adopted by South Africa to give effect to socio-economic rights (e.g. health rights) based on the dicta of the Constitutional Court referred to above.
Article 12 of the ICESCR provides for the right to the highest attainable standard of physical and mental health. It further refers to certain aspects of the right to health.
In 2000, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 14 which provides extensive detail in respect of the content of health rights and the obligations it imposes on State parties. In particular, in paragraph 12 it notes that the right to health in all its forms and all levels contains certain inter-related and essential elements, the precise application of which will depend on the conditions prevailing in a particular State. These include: availability; accessibility, acceptability and quality health care services. These concepts as they apply to health care services have been explained by the Committee on Economic, Social and Cultural Rights as follows:
While the CGE is aware of the fact that there is other issue-specific health legislation, which may to some extent seek to give effect to the aforesaid standards, it is of the view that the National Health Bill which is the key framework legislation, should embody a commitment to those principles, and in so doing create the requisite obligations on the relevant organs of State.
Paragraph 56 of General Comment No. 14 provides the following guidance in terms of framework legislation:
'States should consider adopting a framework law to operationalise their right to health national strategy. The framework law should establish national mechanisms for monitoring the implementation of national health strategies and plans of action. It should include provisions on the targets to be achieved and the timeframe for their achievement; the means by which right to health benchmarks could be achieved; the intended collaboration with civil society, including health experts, the private sector and international organizations; institutional responsibility for the implementation of the right to health national strategy and plan of action; and possible recourse procedures. In monitoring progress towards the realization of the right to health, States parties should identify the factors and difficulties affecting implementation of their obligations.'
WHY A SPECIFIC FOCUS ON 'WOMEN'S HEALTH'?
It is the view of the CGE that the National Health Bill warrants a specific focus on women's health based on the realities of women's lives in South Africa, their physiological specificities as well as international norms and standards. Sex and gender vitally impacts on health. Gender norms, discriminatory legislation, and values tend to negatively impact on women, leaving a huge POWER, and RESOURCE imbalance between men and women. This therefore entitles men easier access to Health, and other resources. Most men are employed in the formal sector, thereby having access to medical aid. The employer contribution is limited to the main member, and leaving the women and children in the cold.
The lower levels of education that many women have which ultimately results in higher levels of illiteracy among women, the working environment that many women find themselves in, the exceedingly high levels of violence against women all contribute to an overall poor state of women's health. These factors result in women being more vulnerable to certain health risks.
Women's physiological differences and its impact on their health needs have been stated as follows: 'Women have different body shapes, organ size and volume, and the distribution of fat. As a result, health problems need to be analyzed from the perspective of women because they suffer from:
The UN Committee on Economic, Social and Cultural Rights has explicitly acknowledged the need for a gender perspective in respect of health measures.
'The Committee recommends that States integrate a gender perspective in their health related policies, planning, programmes and research in order to promote better health for both women and men. A gender-based approach recognizes that biological and socio-cultural factors play a significant role in influencing the health of men and women. The disaggregation of health and socio-economic data according to sex is essential for identifying and remedying inequalities in health.'
In respect of particular measures that should be adopted, the Committee has observed as follows: 'To eliminate discrimination against women, there is a need to develop and implement a comprehensive national strategy for promoting women's right to health throughout their life span. Such a strategy should include interventions aimed at the prevention and treatment of diseases affecting women, as well as policies to provide access to a full range of high quality and affordable health care, including sexual and reproductive services. A major goal should be reducing women's health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence. The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health. It is all important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.' The CGE proposes an ethical obligation be imposed on Medical Professionals to establish the cause of injuries, especially if the injuries are those which are synonymous to that of Domestic Violence, so that the patient can be referred for counseling or to a social worker.
It should however be cautioned that women as a group do not constitute a homogenous grouping. While the CGE is cognizant of the fact that there are various different groupings of women, for the purposes of this submission it has focused on firstly, infusing a gender perspective into the legislation and secondly ensuring that the needs of particularly elderly women are met. The specific focus on elderly women is as a result of the CGE's overall focus on this category of women.
Many elderly women have experienced poor nutrition, reproductive ill health, dangerous working conditions, violence and lifestyle related disease, all of which exacerbate the post menopausal phenomenon of increased likelihood of breast and cervical cancers and osteoporosis. The susceptibilities warrant special attention to the reproductive health needs of elderly women.
In respect of older persons health needs, the Committee has observed as follows:
'With regard to the realization of the right to health of older persons, the Committee, reaffirms the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment. Such measures should be based on periodical check-ups for both sexes; physical as well as psychological rehabilitative measures aimed at maintaining the functionality and autonomy of older persons; and attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.'
In paragraph 35 of General Comment No.6, the Committee on Economic Social and Cultural Rights made the following observations:
'Clearly, the growing number of chronic, degenerative diseases and the high hospitalization costs they involve cannot be dealt with only by curative treatment. In this regard, State parties should bear in mind that maintaining health into old age requires investments during the entire life span, basically through the adoption of healthy lifestyles (food, exercise, elimination of tobacco and alcohol, etc.). Prevention, through regular checks suited to the needs to older persons, plays a decisive role, as does, rehabilitation by maintaining the functional capacities of older persons with a resulting decrease in the costs of investments in health care and social services.'
Based on the aforesaid, it is the view of the Commission for Gender Equality that in terms of both the South African Constitution and international provisions referred to above, the Bill should in fact give particular attention to the health needs of women and older persons. It should however be cautioned that the CGE is not suggesting that these are the only vulnerable groups that should be given special attention in the Bill.
OVERVIEW OF THE NATIONAL HEALTH BILL
The Preamble of the National Health Bill has been drafted pursuant to the sections of the Constitution dealing with health rights (section 27) as well as the right to a clean and healthy environment (section 24). This Opinion will focus mainly on the rights and duties of users and health care providers as the issues relevant thereto are most pertinent to the category of beneficiaries underpinning this submission.
PURPOSE AND OBJECTS OF THE BILL
As reflected in the long title, the National Health Bill was enacted to provide a structured uniform health system within the Republic taking into account the obligations imposed by the Constitution.
The Objects of the Act are included in section 2 of the Bill. The overall objective is to regulate national health and to provide uniformity in respect of health services across the nation by:
SUBMISSIONS IN TERMS OF THE OVERALL STRUcTURE AND FRAMEWORK OF THE NATIONAL HEALTH BILL
Vulnerable and marginalized groups
The Commission fully supports the 'rights framework' which has underpinned the objectives of the Bill. However, it proposes that the objects of the Bill should include specific reference to advancing the health rights and access to services for vulnerable and marginalized groups including women and older persons.
The National Health Bill currently precedes from a neutral premise without reflecting or taking account of the health needs of specific groups of persons. This neutral approach does not accord with the constitutional provisions or international law provisions referred to above.
In this respect, the Bill represents a departure from the White Paper on Health in respect which the health needs of vulnerable groups were given explicit recognition. The White Paper on Health gives special attention to meeting the health needs of the poor, the under-served, the aged, women and children, who are considered to be amongst the most vulnerable. However, the Bill fails to accord any priority to meeting the health needs of these or other vulnerable groups.
It is proposed that the objects of the Bill in terms of section 2 make express reference to a commitment to the health needs of vulnerable and disadvantaged groups, which groups shall include (at a minimum) those referred to in the White Paper on Health.
In addition, it is recommended that further research is undertaken into the other potential vulnerable and marginalized groups, such as persons living with HIV/Aids and that specific attention is accorded to these groups.
Specific measures throughout the National Health Bill should make provision for the health needs of these groups.
It is further suggested that section 2(c) specifically refer to the duty to 'protect' the rights included therein. This amendment would reflect the State obligations in respect of health care rights as provided for in section 7(2) of the Constitution, which refers to a specific duty to protect rights.
REPRODUCTIVE HEALTH CARE
Despite section 2(c) (i) of the Bill specifically referring to reproductive health care services, the entire Bill fails to make any further reference to reproductive health care. The CGE proposes that the Bill accord greater attention to reproductive health care services particularly in respect of chapters 1 and 2. Reproductive health rights have particularly important implications for women's health. Recently, there has been an alarmingly increase in breast and cervical cancer, and providing accessible facilities for regular screening of breast and cervical cancer is a vital for women. Maternity Care will assist in the prevention of child mortality. Attention given to reproductive health post childbearing years is limited. Its explicit protection in the Bill is accordingly warranted.
The CGE proposes that the Bill follow the definition of reproductive health as adopted by the Programme of Action of the International Conference of Population and Development which states: 'Reproductive health is a state of complete, physical, mental and social well-being and not merely the absence of disease or infirmity in all matters relating to the reproductive system and to its functions or processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.'
Participation in health structures
Despite international law provisions referring to collaborative initiatives and stressing the importance of health user participation, the Bill in its current form gives grossly inadequate attention to the principle of participation in respect of health policy and monitoring functions. The attention it accords to participation is limited to individual health users in respect of their individual health needs.
MONITORING, TARGETS, BENCHMARKS AND TIMEFRAMES
Although the Bill establishes important institutions that are tasked with monitoring health care rights and establishing targets, etc. the Bill itself provides minimal guidance in respect of these critical issues.
It is proposed that specific terms of reference in this regard be stipulated in the Bill.
SUBMISSIONS IN RESPECT OF SPECIFIC PROVISIONS OF THE NATIONAL HEALTH BILL
RESPONSIBILITY FOR HEALTH (S3)
Section 3 specifically obliges the Minister within the limits of available resources to adopt a number of measures in respect of health care rights, including the prioritisation of the health services that the State can provide taking into account the health needs and available resources.
Firstly, the CGE proposes that this provision specifically include reference to reproductive health and reproductive health care services. Given the fact that reproductive health care is given explicit attention in the Constitution, it is submitted that it should be incorporated in a similar manner in the National Health Bill.
Secondly, section 3(e) provides that the Minister must 'within the limits of available resources prioritise the health services that the State can provide taking into consideration health needs and available resources'. The section provides no guidance in terms of how health needs are to be determined. It is accordingly suggested that specific reference is made to particularly the health needs of marginalized and vulnerable groups.
DEFINITION OF HEALTH CARE SERVICES
Despite the fact that the Bill intends to give effect to the right of access to 'health care services', it fails to define the term or provide any guidance in terms of what constitutes health care services.
The content of the Bill also tends to reflect a departure from the international trend which recognises both preventative and curative health care services. This Bill is largely weighted in favour of curative health care services.
It is proposed that the Bill clearly state that it is premised on the definition of health as defined by the World Health Organization, which extends beyond the narrow biomedical definition. The World Health Organization defines health as: '[A] state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.'
ELIGIBILITY FOR FREE HEALTH CARE SERVICES IN PUBLIC HEALTH FACILITIES
The Commission for Gender Equality welcomes section 4 of the Bill. The section permits the Minister to prescribe conditions subject to which categories of persons are eligible for free health services at public health establishments. However, the CGE proposes that this duty be made mandatory as opposed to permissive. This proposal is based on the State obligation to fulfil health care rights, which as pronounced on by the Constitutional Court in Grootboom, might require direct assistance in respect of desperate and vulnerable groups.
Secondly, section 4(2) establishes certain conditions that the Minister must have regarded to in prescribing conditions for free health care services. Currently, pregnant women, and children under the age of 6 years are entitled to free health services. Notably absent from the set of criteria is the health needs of particularly vulnerable and marginalized groups, such as women, aged, people with disabilities, and children. Although the provision in its current form represents an improvement from the previous draft of the Bill which did not provide any criteria in respect of which the Minister should exercise his discretion, it simply does not go far enough.
'Cost differentials in accessing health services in rural and urban areas must be acknowledged and addressed. Though primary healthcare is free of charge in urban areas, this service is often abused. Patients often lie about their income in order to access free medical care, especially since care at tertiary institutions is very expensive. Other specialised services that often prove too costly for older persons to access include TB screening, pap smears, checks for prostrate cancer and accessing medication that alleviates the side effects of chronic conditions.' It is accordingly proposed that a fourth criteria be inserted referring to the health needs of vulnerable and marginalized groups. CGE recommends that S4(2), should include that the Minister, take into account the needs and mobility of women, aged, children, and people with disabilities when prescribing the conditions for free health services.
It is cautioned that this criterion not be used to limit further access to free health care services for vulnerable groups who are already receiving an aspect of free health care services. The needs of such groups might be such so as to necessitate them receiving increased access to free services.
Emergency medical treatment
Section 5 of the Bill simply notes that a health care provider or health establishment may not refuse a person emergency medical treatment. Unlike previous drafts of the Bill, its current version does not define what constitutes 'emergency medical treatment'. The previous draft provided criteria under which emergency medical treatment should be provided (for instance it referred to the establishment being open and able to provide such treatment). While the criteria imposed in those drafts were clearly inadequate, the current provision is unnecessarily vague. It merely echoes section 27(3) of the Constitution as opposed to proving any guidance regarding its interpretation.
The Constitutional Court has held that emergency medical treatment refers to treatment for someone 'who suffers a sudden catastrophe which calls for immediate medical attention.' Having regard to the Soobramoney case, it is strongly urged that the term 'emergency medical treatment' is defined in the Bill.
Secondly, it is suggested that the Bill make provision for prioritising of resources to provide emergency medical treatment. The CGE welcomes the reference to the obligation imposed on all health establishments (including private health facilities) in respect of the provision of emergency medical treatment.
User to have full knowledge
Section 6 of the Bill stipulates the nature of the information that a health care provider must inform a user of. The principle of the user of the health service having full knowledge is fully supported by the CGE.
However, it is strongly urged that the Bill make reference to accessible, linguistically and culturally appropriate information. Even if a health care provider does inform a user, if this information is not communicated in accessible language and in a language that the user understands, it is meaningless. This issue bears particular relevance for women in respect of whom illiteracy levels are higher. In line with the international trend in respect of preventative health care, it is proposed, that the information the user is entitled to specifically include preventative measures.
CONSENT OF USER
The CGE welcomes the provisions pertaining to the informed consent of the individual (section 7). However, the CGE recommends that the term 'informed consent' is in fact defined in the Bill. This definition must be based on the factors referred to in section 6 of the Bill, in addition to preventative measures.
Participation in decisions
The CGE fully supports the principle of a user having the right to participate in decisions affecting his or her personal health or treatment. (section 8)
DUTY TO DISSEMINATE INFORMATION (S12)
The Bill obliges the relevant structures to ensure that adequate and comprehensive information is disseminated in respect of the health services for which they are responsible. Whilst the principle is an important one, its value can be enhanced by referring to appropriate and accessible health information. As mentioned, appropriate health information is particularly important in light of issues such as high levels of illiteracy, variances in language of choice etc. In addition, it is proposed that such information should include reference to the rights of users of health care services and providers of health care services. Public Education will play an important role, and should especially be provided to vulnerable groups, such as women and the elderly. This information could also empower them, thereby limiting room for abuse. This is also a good tool for the public to ensure accountability of the health service officials.
DUTIES OF USERS (S19)
The CGE is unclear and somewhat concerned in respect of this section. The Bill is unclear as to whether an individual is entitled to access health care only if they have complied with their duties as users of the health service. Should the basis of this clause lie in ensuring 'conditional' access to health care services, the CGE is strongly opposed to it.
It is particularly concerned in respect of clause 19(b), which refers to the disclosure of accurate information pertaining to an individual's health status. Due to stigma, bias and prejudice that often operate among health care providers, an individual might choose not to disclose accurate information pertaining to her health status. It is for these reasons that the CGE is of the view that section 19 be deleted in its totality. In any event, it submits, the Patient's Rights Charter makes adequate provision for duties of users of the health care system.
Furthermore, section 19 is untenable in its current form as certain health users (particularly aged persons and illiterate women) make not be in a position to make an accurate disclosure as envisaged by section 19 (b).
REGULATIONS RELATING TO CERTIFICATE OF NEED
S44 (2) Regulations made under subsection (1)-
(a) must [ensure] promote the equitable distribution and rationalisation of health services [with special regard to the most vulnerable, namely, women, older persons, children, and people with disabilities];
(d) must promote [ensure] access to health services and the optimal utilisation of health care resources [with special regard to the most vulnerable, namely, women, older persons, children, and people with disabilities];
CGE recommend that the word "promote" in both clauses be substituted with the word "ensure", as this is an important aspect of health services. In addition to this, we recommend the following be included in both subsections: 'with special regard to the most vulnerable, namely, women, older persons, children, and people with disabilities."
PROVISION OF HEALTH SERVICES AT PUBLIC HEALTH ESTABLISHMENTS
S46(7) The boards contemplated in subsections (4) and (6) must be composed of-
(d) not more [substitute 'more' with the word 'less'] than three representatives of the communities served by the hospital, including special interest groups representing users; and [insert: 'must include at least one person representing the interests of women; one person representing the interests of the elderly; and one person representing the interests of people with disabilities']
NATIONAL, PROVINCIAL AND DISTRICT HEALTH STRUCTURES
Although the Commission for Gender Equality has not given extensive attention to the structures and mechanisms for the delivery of health care services, it is particularly concerned about the composition of various structures that have been established in terms of the structures.
At a national level, the Bill establishes a National Health Council in terms of section 21 of the Bill. The Council has extensive powers and functions in terms of section 22 of the Bill, particularly in respect of policies regarding health in the country and the setting of priorities, norms and standards. In terms of section 22, a National Health Advisory Committee is established, the functions of which are stipulated in section 24. Notably absent from the composition of both these structures, for a human rights expert, an expert in women's health and users of the public health system. Given that health is a constitutional right, it is submitted that these structures would greatly benefit from the aforesaid inclusions. This element of broader participation has also been recognized in the international context:
'The formulation and implementation of national health strategies and plans of action should respect, inter alia, the principles of non discrimination and peoples' participation. In particular, the rights of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 12. Promoting health must involve effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies to achieve better health. Effective provision of health services can only be assured if people's participation is secured by States.'
It is submitted that for reasons aforestated, our comments are equally applicable in respect of the provincial and district structures created by the Bill. It is further submitted that the functions of these institutions should specifically include the monitoring of access to health care services and reproductive health for vulnerable and marginalized groups.
NATIONAL HEALTH RESEARCH AND INFORMATION
The CGE welcomes section 75 of the Bill which stipulates certain criteria for the identification of health research priorities. However, it strongly urges that the criteria reflect specific regard to the health needs of vulnerable groups such as women, people with disabilities, children and older persons.
CO-ORDINATION OF A NATIONAL HEALTH INFORMATION SYSTEM
The CGE welcomes the provisions for the creation of a national health information system (section 79), which it views as critical to the effective monitoring of health care rights. However, it strongly urges that the Bill make specific reference to the collection gender disaggregated data which is vital to being able to monitor access to health care services from a gender perspective. Our comments in respect of health information at provincial and district level are equally applicable.
Office of standards compliance
The CGE welcomes the establishment of an Office of standards compliance in terms of section 83 of the National Health Bill. Conversely, it is strongly urged that this office performs its duties after consultation with users of the public health system. It is proposed that section 83(2) specifically stipulates this.
INSPECTIONS BY THE OFFICE OF STANDARDS COMPLIANCE (S84)
CGE recommends that should a public health care establishment be closed due to non compliance with standards, or for any other reason, the Minister must ensure that alternative reasonable and accessible health care services be made available to the Community who will be affected by the closure, or partial closure. This should be done within a reasonable period of time.
The CGE hopes that this dialogue proved to be a successful exercise and provides parliament with some insight as to experiences on the ground regarding the proposed legislation.
This submission is aimed at ensuring a constitutionally sound piece of legislation as well as one that is receptive to the health needs of women and aged persons.